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Judge upholds O’Donnell verdict, cancels insurance trial

By: Beth Kevit, [email protected]//February 10, 2014//

Judge upholds O’Donnell verdict, cancels insurance trial

By: Beth Kevit, [email protected]//February 10, 2014//

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A Milwaukee County judge denied multiple motions for a new trial Monday in wrongful death and personal injury cases stemming from the partial collapse of O’Donnell Park’s facade in 2010.

Milwaukee County Circuit Judge Christopher Foley also ruled that an insurance company is liable for damages against a contractor on the project that led to a 13 ½-ton concrete panel falling from the Milwaukee County-owned parking garage in June 2010. The panel failure killed 15-year-old Jared Kellner, of Greenfield, and injured Eric and Amy Wosinski as they walked to Summerfest.

In November, a jury determined that Random Lake-based Advance Cast Stone Co. was mostly to blame, though Milwaukee County and general contractor J.H. Findorff & Son Inc. were also found liable. Advance Cast Stone manufactured and installed the concrete panels. Findorff settled with the families before the trial.

The insurers, Liberty Surplus Insurance Corp. and Liberty Insurance Underwriters Inc., were not allowed to participate in the trial.

Foley barred the insurance company’s participation because he said it would be unfairly prejudicial to Advance Cast Stone. After the jury’s verdict in November, Foley said he planned to hold a second trial to determine whether Advance Cast Stone’s policies from Liberty covered the damages.

A jury awarded the Wosinski family $11.4 million, the Kellner family $6.8 million and Milwaukee County $6 million in compensatory damages. It also decided Advance Cast Stone owed $15 million in punitive damages which, according to court documents, will put the company out of business.

After the verdict, the insurance company argued it could not be bound by the jury’s decision because it had not been allowed to participate in the trial. Liberty argued, according to court documents, that the verdict should be thrown out and a new trial ordered.

On Monday, Foley denied that motion and reversed his earlier decision to hold a second, related trial. That trial had been scheduled for March, but Foley said he no longer thought it was necessary and was convinced the Liberty policies cover Advance Cast Stone.

Michael Vescio, an attorney with Chicago-based SmithAmundsen LLC who represents Liberty, refused to comment after the hearing.

Matthew McClean, an attorney with Milwaukee-based Davis & Kuelthau SC who represents Advance Cast Stone, said his client has not decided whether to appeal. He said Advance Cast Stone’s insurance policies cap damage payments at $10 million, and he was not sure whether the judge had ruled that Advance Cast Stone was liable for damages beyond that cap.

The only question remaining, said Tim Andringa, an attorney with Waukesha-based Cramer, Multhauf and Hammes LLP who represents the Wosinskis, is whether Liberty is liable for breach of contract damages awarded to Milwaukee County. Once that is determined, he said, the $10 million in coverage will be meted out in proportion with the jury’s awards to the county and the two families.


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